Weekly Notes: legal news from ICLR – 8 August 2014

This week’s roundup of legal news from home and abroad goes “in camera” to see who put the ape into aperture, gets court in the cross-fire of legal funding, and notes how a fake sheikh’s fakery led to a shakeup of more than 30 criminal cases. There’s also a bumper crop of tales of injustice from around the world.

Snap judgment on simian selfie

Another picture of primates engaged in photography: Planet of the Apes

Lots of commentators have given us their opinions (in which, being human, they own copyright) on the question whether a photograph, taken on a human being’s camera, by a non-human creature (a black macaque monkeying around with his equipment), is subject to copyright or belongs to the public domain and may be distributed freely, as it has been, by a site such as Wikimedia Commons.

Wikimedia, the non-profit organisation behind Wikipedia, has refused a photographer’s repeated requests to stop distributing his most famous shot for free – because a monkey pressed the shutter button and should own the copyright.

Jordan Weissmann, senior business and economics correspondent for Slate, has consulted law professors and concludes that, in the absence of a human click on the shutter, the photo must be in the public domain. The photographer, David Slater, cannot require Wikimedia Foundation to take down the photo, which Slate (slating Slater’s claim), gleefully reproduces.

She does not regard the issue as clear cut at all, citing Laddie, Prescott & Vitoria, on The Modern Law of Copyright and Designs, 4th ed, 4.61 p.254, that the author

“is the person who made the original contribution and…need not be he who pressed the trigger”. She adds: ‘Original contribution’ in this sense can take several forms: there may be originality, for instance, in the use of angle, filters, light, exposure, and so forth which create a photograph.

She concludes:

It’s a fascinating debate and I would definitely want to be in court watching this particular case.

Under section 11 of the Act, the “author” is the first owner of copyright in it, and under section 9, the author is defined as “the person who creates” the work. But although a photograph can be a work of art, this presupposes its creation by an author. So if there’s no human author, is it still a work of art capable of attracting copyright? David Allen Green thinks not. What if

a stray cat had rubbed paint on a canvas or a wild dog had chewed loudly at the strings of a Stradivarius: the result may be something which, if it was created by a human, could qualify to be a work under the law of copyright; but because it was done by a beast, it may not even be a “work”.

The same would be true (citing that hoary old speculation) of literature:

An infinite number of monkeys on an infinite number of typewriters may create something as great as the works of Shakespeare, but they would never have any proprietary rights over the literature they had created.

There are some interesting comments and replies at the end of his piece.

All this is pedicated on the assumption that a monkey or ape, not being human or – more significantly – a “person” in law, cannot hold or assign copyright. But that is the subject of ongoing proceedings in New York, where the Nonhuman Rights Project is pursuing a claim to have Tommy, a chimpanzee, recognised as a “person” in law.

It’s also worth pointing out that if Slater had pretended that he’d taken the photo, no one would have questioned him. But the photo only went viral and became worth something because he didn’t. That’s his Catch-22.

Meanwhile, a word of warning

Having recently returned from a holiday in which a large group of former school friends, travelling together, repeatedly invited perfect strangers such as waiters, tour guides and even random tourists, to take group photographs of all of them, the question in my mind is: if one of those photos became valuable for some reason, would we have to find the individual who took the shot in order to respect their copyright and pay them a royalty? The solution has to be to carry a wad of copyright assignment forms around whenever you think you may need to ask someone else to take your photo. Just to be on the safe side.

Credit where credit is due…

Finally, on this, we see no need to add to Slater’s woes by reproducing the image in question, just because everyone else has.The legal position on the Planet of the Apes is, presumably, quite different. (Photo still via Timey Wimey blog )

Court in the funding cross-fire

Court service ordered to provide legal aid for unrepresented litigants

In what the papers love to call a “shock move”, the President of the Family Division, Sir James Munby, this week ordered the Court Service to provide for legal representation, at public expense, should the Legal Aid Agency refuse to do so, for the fathers involved in three child custody cases in which the respective mothers have been granted legal aid.

The absence of public funding for those too impoverished to pay for their own representation potentially creates at least three major problems: first, the denial of legal advice and of assistance in drafting documents; second, and most obvious, the denial of professional advocacy in the court room; third, the denial of the ability to bring to court a professional witness whose fees for attending are beyond the ability of the litigant to pay. Each of these problems is, of course, exacerbated if the litigant needs a translator to translate documents and an interpreter to interpret what is going on in court.

The absence of assistance in the court room by a professional advocate causes obvious problems: most litigants lack the skills to represent themselves to best advantage, for example in examining and cross-examining witnesses or making submissions. But there is a further and even more serious problem: the acute tensions that may arise when an alleged perpetrator cross-examines the alleged victim.

If the father’s application for public funding under LASPO is successful, then all well and good. If it is not, then I will have to consider what, if any, further order to make… if there is no other properly available public purse, the cost will, in my judgment, have to be borne by HMCTS. HMCTS will also have to pay the cost of providing the father with an interpreter in court. If the father is still unable to obtain representation, I will have to consider whether the cost of that should also be borne by HMCTS. That, however, is a matter for a future day.

I have concluded that there may be circumstances in which the court can properly direct that the cost of certain activities should be borne by HMCTS. I emphasise that (the provision of interpreters and translators apart) this is an order of last resort. No order of this sort should be made except by or having first consulted a High Court Judge or a Designated Family Judge.

The judgment has been reported in summary form ([2014] WLR (D) 372)but repays reading in full.

Commentators (such as Owen Boycott in the Guardian) have suggested that Sir James has thereby “thrown down a direct challenge to the government over legal aid…” Boycott suggests that the judgment raises constitutional issues about who controls public money. The Ministry of Justice was reportedly “considering the judgment”, as the President anticipates they would (see para 92). If it decides to appeal (assuming it can), no doubt it will provide itself with representation at an appropriate level of expertise and, dare we say, cost?

Looking at the wider effect of cutting legal aid, apart from allegedly bringing the overburdened family justice system to “breaking point” (Guardian) the absence of representation in many cases is making the issues harder to clarify and the resolution of disputes take much longer, wasting the time of court staff and judges and thereby adding to the public cost in other ways. So, it is said, money saved in one place is merely being wasted in another.

In a press release in response to the Q v Q judgment, Jo Edwards, chair of Resolution (formerly the Solicitors Family Law Association) said:

“It reminds us that legal aid isn’t about funding for lawyers – in fact a fifth of legal aid family lawyers earn less than the UK’s average salary. It’s about providing help to the people who need it most, so that cases can be looked at fairly and with equal treatment for both parties.

“It is absolutely right for Sir James to ask Ministers to intervene – and I hope they will look very seriously at this.

“Otherwise, if matters continue on their current trajectory, legal representation, advice and support will be the preserve of those who can afford it, not those who are in most need.”

You don’t have to be Mahmood to work here…

but if you are, we’ll need to review your cases.

More than 30 criminal convictions, involving the so-called “Fake Sheikh” are to be reviewed following the collapse last month of the trial of Tulisa Contostavlos after the judge decided he had strong grounds for believing that the key witness, Mazher Mahmood, a Sun reporter whose undercover evidence ensnared the pop singer into allegedly arranging to deal drugs, had lied in court as a witness and manipulated evidence, according to the Telegraph.

The singer denied the allegations and said she had been entrapped into playing a part for a putative film role audition.

News UK, Mr Mahmood’s employer, has suspended the secretive reporter – who is credited with securing the conviction of more than 90 individuals through his often breathtakingly “stingtastic” scoops – mostly for the now discredited News of the World newspaper – pending what was described as an “internal investigation”. (Internal to the organisation, presumably.)

Justice (and injustice) around the world

Cambodia

Khmer Rouge leaders jailed

Two members of the Khmer Rouge leadership have been found guilty of crimes against humanity, and jailed for life some 40 years after the despotic regime’s reign of terror came to an end. The sentence may not last long since one of them, former head of state Khieu Samphan, is 83, and the other, KM’s Brother No 2, Nuon Chea, is 88. Lawyers for the two said they would appeal.

The verdict comes nearly 40 years after the regime led by Pol Pot ended its murderous four-year reign over Cambodia, during which time nearly 2 million people – a quarter of the population – died from starvation, exhaustion, execution or lack of medical care as a result of the communist “utopia”

experiment.

East Timor

Media law under scrutiny

East Timor’s Court of Appeal is to review the constitutionality of a new media law passed by the East Timor parliament in May that has power to stifle the country’s still-fragile media freedom, reports Human Rights Watch:

Although the Media Act explicitly enshrines “freedom of the press”, “freedom of expression”, and “prohibition of censorship”, elements of the law will give the government a free hand to gag journalists and the organisations they work for.

For example, it creates an official Press Council which would have power to grant or revoke journalists’ credentials under a new licensing system, and prevent media organisations employing journalists not duly certified with credentials.

Journalists would be obligated, along with reporting the news, to “promote the national culture”, and “encourage and support high quality economic policies and services”. Another provision requires journalists to “promote public interest and democratic order”.

The danger for journalists lies in the law’s omission of any specific explanation or clarification of what these obligations actually entail. As a result, the government has dangerously wide latitude in interpreting the law to the detriment of journalists’ ability to report without fear of violating these ambiguous requirements.

India

Indian girl – victim of attempted rape by uncle who had previously assaulted her – used knife to cut off his penis.

A man is on the run and police do not plan to prosecute the girl. Full story, Independent.

India seems to have seen an epidemic of rapes and sexual assaults but in reality what has probably happened has simply been more and better reporting of the existing rate of such assaults, throughout the country, since the appalling and widely condemned fatal rape of a medical student in December 2012, as previously reported on this blog. (See also Weekly Notes – 11 July.)

Malaysia

With either frightening efficiency or suspicious alacrity, the local police in Borneo have already solved the murders of two 22-year-old British medical students in Kuching, a Malaysian part of the island.

The victims, Neil Dalton, from Ambergate, Derbyshire, and Aidan Brunger, from Gillingham, Kent, were fourth-year medical students at Newcastle University. They were allegedly attacked by four local men after an altercation in a bar, according to the Guardian.

The following day, the local police chief, Datuk Dr Chai Khin Chung announced:

“We have finished our investigation, the crime has been solved. The suspects have been apprehended and they have admitted the crime. We have recovered the weapons from the crime.

South Africa

Closing speeches in the Oscar Pistorius murder trial

The closing speeches began on 7 August with a scathing attack by prosecutor Gerrie Nel accusing the athlete of being a “deceitful and appalling witness” whose evidence, as he sought to tailor his version of events, was “weak” and his answers “vague”, according to The Independent. As it recalled, by way of a recap:

Pistorius is accused of murdering girlfriend Ms Steenkamp in his upscale home in Pretoria on Valentine’s Day last year. He also faces three separate charges, including two counts of discharging firearms in public and possession of illegal ammunition. He denies all charges and claims he shot Ms Steenkamp by mistake, thinking there was a burglar.

Oscar Pistorius’ lawyer, Barry Roux, in his closing submissions the following day, said the athlete had “built up” an exaggerated fear of crime and snapped the same way a victim of domestic violence would have done after years of abuse the night he shot Ms Steenkamp. According to the Independent,

“You have the effect of the slow burn of insecurities over many years. You’re an athlete. You’re trained to react to a sound, and he stands there now with his finger ready to fire, and then…” Mr Roux told the court, slapping his hand on the desk to mimic the sound of what Pistorius claimed was an intruder.

The trial is being conducted before a judge and two assessors, rather than a jury (as South Africa does not offer trial by jury). However, it is also being conducted before TV cameras and, thereby, a jury of the world and its judgmental media. No doubt Judge Masipa will sift the facts from the rhetoric in counsel’s submissions – on both sides. No doubt many others watching will offer their own interpretations – but these should not affect the verdict.

Uganda

Uganda’s Constituional Court overturns homosexuality law.

The court annulled a law that called for a 14-year jail term for a first conviction, and imprisonment for life for ‘aggravated homosexuality’, following a number of challenges, on the grounds that legislators passing the bill were inquorate.

USA

California court strikes down death penalty

In a stunning – and possibly prescient – decision, United States District Court Judge Cormac J. Carney of the Central District of California struck down the state of California’s death penalty system as unconstitutional under the Eighth Amendment’s prohibition against cruel and unusual punishment, writes Carol S Steiker (a Harvard Law School professor), analysing the decision on Oxford Human Rights Hub:

Instead of addressing the particularities of the defendant’s case, Judge Carney widened his lens to scrutinize the California death penalty system. He noted that while over 900 people have been sentenced to death since California’s current system was adopted in 1978, only 13 have been executed. He observed that California’s lengthy delays between sentence and execution have “quietly transformed” a sentence of death into a sentence that “no rational jury or legislature could ever impose: life in prison, with the remote possibility of death.” In such a system, Judge Carney concluded, the “random few” who actually do eventually get executed “will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.”

She goes on to examine a number of surprising dimensions, including the judge’s background and the context, and the “current dysfunctional state of the American death penalty”.